Lum Kam Wah v Vector Atlantic Sdn Bhd (WA-28NCC-673-06/2025)

This is the Winding-Up Petition filed by the Petitioner, Lum Kam Wah, against the Respondent, Vector Atlantic Sdn Bhd, pursuant to sections 465(1)(c), (f), and (h) of the Companies Act 2016 (CA 2016).

At the hearing of the Petition, both the Petitioner and Man Chan Meng (MCM), the director and shareholder of the Respondent, agreed that the Respondent be wound up.

Enclosure 24, MCM’s application to remove the Interim Liquidators appointed pursuant to the ex parte Order dated 10 July 2025 in Enclosure 21 and/or to appoint Chiang Teng Guan (CTG) as Interim Liquidator or Joint Interim Liquidator, was withdrawn by the Respondent.

Therefore, the sole issue for this Court’s determination was the appointment of the Liquidator(s) of the Respondent, namely, whether this Court ought to appoint the Petitioner’s nominees, namely the existing Interim Liquidators, Lim Sin Han and Leoh Hin Han of Messrs Sin Han & Co. PLT, or MCM’s nominee, CTG, whether as the sole Liquidator or jointly with the Petitioner’s nominees. S/N /tCXR5HskaZd9lL/jYlow

The Petitioner holds 45% of the Respondent’s shares and is a co-founder, director, and creditor of the Respondent. MCM holds the remaining 55% of the Respondent’s shares and is likewise a director of the Respondent.

At some point in May 2023, the Petitioner and MCM agreed to dissolve the Respondent and to divide its assets and funds in proportion to their respective shareholdings (the Agreed Dissolution). The Respondent ceased business operations with effect from 31 March 2024.

Subsequently, disputes arose between the parties over the division and management of the Respondent’s remaining assets, with each party alleging misconduct by the other. The Petitioner alleged irregular and unauthorised payments by MCM, while MCM alleged that the Petitioner had breached fiduciary duty and diverted business.

As both parties were, at the hearing, in agreement that the Respondent be wound up, a position also consistent with MCM’s own prayer at paragraph 64(a) of his Affidavit in Opposition, in Enclosure 27, I do not consider it necessary to dwell on these underlying allegations, except insofar as they bear on the issue of the appointment of the Liquidator, addressed below. S/N /tCXR5HskaZd9lL/jYlow

On 10 July 2025, this Court granted the Petitioner’s ex parte application to appoint Lim Sin Han and Leoh Hin Han of Messrs Sin Han & Co. PLT as Interim Liquidators of the Respondent (Enclosure 21). The Petition was served on the Respondent on 15 July 2025.

On 6 August 2025, MCM filed an application to remove the Interim Liquidators and/or to appoint CTG, supported by his Affidavit in Enclosure 25 and his Affidavit in Opposition to the Petition in Enclosure 27.

The Interim Liquidators filed further affidavits in Enclosures 56 and 61, which respectively exhibit the Interim Liquidators’ First Report for the period from 10 July 2025 to 30 November 2025 and the Second Report for the period from 1 December 2025 to 16 January 2026.

At the hearing, both parties agreed that the Respondent be wound up, and the Respondent withdrew Enclosure 24. This Court directed that further submissions be filed, limited to the issue of the appointment of the Liquidator. Pursuant to that direction, the Petitioner filed the Petitioner’s Further Submissions in Enclosure 67, and MCM filed his Additional Submission in Enclosure 69. S/N /tCXR5HskaZd9lL/jYlow

It is not disputed that no Notice of Intention to Appear was ever filed by MCM under rule 28 of the Companies (Winding-Up) Rules 1972 (CWUR 1972), whether in the Statement Regarding List of Persons Intending to Appear dated 5 December 2025 in Enclosure 57 or dated 22 April 2026 in Enclosure 64. It is further not disputed that, following the withdrawal of Enclosure 24, no application was filed by or on behalf of MCM or the Respondent seeking a substantive order appointing CTG as Liquidator, whether sole or joint.

As both the Petitioner and MCM were, at the hearing, in agreement that the Respondent be wound up, a position consistent with MCM’s own prayer at paragraph 64(a) of Enclosure 27, notwithstanding his opposition to other aspects of the Petition, I was satisfied that it was appropriate to allow the Petition and to order the Respondent’s winding up pursuant to sections 465(1)(c), (f) and (h) of the CA 2016.

As this aspect was not contested, I do not consider it necessary to elaborate further, and I turn to the issue that was substantively contested between the parties, namely, the appointment of the Respondent’s Liquidator(s). S/N /tCXR5HskaZd9lL/jYlow

I pause to observe that this was not an application for the removal of a duly appointed Liquidator under section 482 of the CA 2016. At the material time, Lim Sin Han and Leoh Hin Han had only been appointed as Interim Liquidators pursuant to the ex parte Order in Enclosure 21, pending the hearing and disposal of the Petition. Accordingly, upon the winding-up order being made, the question before this Court was one of original appointment, namely, which of the nominees put forward by the parties ought to be appointed as the Liquidator(s) of the Respondent.

This being a question of original appointment, the considerations material to that determination, as canvassed by the parties, were:

whether MCM’s non-compliance with rule 28 of the CWUR 1972 disentitled him from being heard on the question of appointment.

(ii) the wishes of the majority creditor in value.

(iii) the independence of, and any conflict of interest affecting, the respective nominees. S/N /tCXR5HskaZd9lL/jYlow

(iv) whether joint Liquidators ought to be appointed.

MCM's Non-Compliance with rule 28 of the CWUR 1972

The Petitioner submitted that rule 28 of the CWUR 1972 requires every person intending to appear at the hearing of a petition to serve on the Petitioner or their solicitor a notice of intention to appear, which must be served or posted so as to reach the address not later than 12.00 noon on the day preceding the day appointed for the hearing.

The Petitioner relied on the Court of Appeal decision in Malaysian Assurance Alliance Bhd v Comsa Properties Sdn Bhd [2011] 7 CLJ 942, which applied Boey Oi Leng v Trans Resources Corporation Sdn Bhd [2002] 1 CLJ 405 and cited Four Pillows Enterprise Co Ltd v Beiersdorf Aktiengesellschaft [1999] 1 SLR 737, to support the proposition that rule 28 exists to confer on a party who serves the requisite notice, normally a creditor or contributory, the right to be heard, to file an affidavit in opposition, to receive affidavits in reply, and to appeal against the winding-up order; and that it is by service of that notice that a person becomes a party to the proceedings.

The Petitioner further relied on Kilang Kepala Sawit Selumpur Sdn Bhd (In Liquidation) (Receiver Appointed) v Revenue Direction Palm Oil Mill (M) Sdn Bhd (formerly known as S/N /tCXR5HskaZd9lL/jYlow Revenue Direction Sdn Bhd) [2018] 1 LNS 1623, where Vazeer Alam Mydin Meera J (as His Lordship then was) held that service of a Notice of Intention that failed to comply with the mandatory requirement of rule 28 was invalid. On this basis, the Petitioner contended that MCM’s failure to file any Notice of Intention to Appear rendered his participation, insofar as it concerned the appointment of a Liquidator, defective and liable to be disregarded, and that the non-compliance was fatal.

MCM argued that non-compliance with rule 28 can be cured by rule 194 of the CWUR 1972 (formal defect not to invalidate proceedings) and section 582 of the CA 2016 (irregularities in proceedings, in pari materia with section 355 of the repealed Companies Act 1965), relying on the Federal Court decision in Kilo Asset Sdn Bhd v Hew Tai Hong [2016] 1 MLJ 785, which held that rules 193 and 194 of the CWUR 1972, read with section 221(2) of the Companies Act 1965, empower the court to abridge or excuse non-compliance with the Winding-Up Rules unless substantial injustice would result that cannot be remedied by an order of court. The Federal Court in that case upheld Hew Tai Hong v Kilo Asset Sdn Bhd [2015] 2 MLJ 632 (CA), which cautioned against a rigid approach to non-compliance in a petition brought under section 218(1)(f) and (i) of the Companies Act 1965 (in pari materia with section 465(1)(f) and (h) of the CA 2016), and also referred to Tng Hock Siang v Lady Bodyline Lingerie Sdn Bhd [2010] MLJU 1712, to the effect that it would be unduly strict to insist on rigid S/N /tCXR5HskaZd9lL/jYlow adherence to a procedural time limit while ignoring the court’s powers under rules 193 and 194.

MCM further relied on Kilang Kepala Sawit Selumpur Sdn Bhd (In Liquidation) (Receiver Appointed) v Revenue Direction Palm Oil Mill (M) Sdn Bhd (supra), the same authority relied upon by the Petitioner, to support the proposition that, notwithstanding a finding of non-compliance with rule 28, the learned Judge in that case nevertheless, in the interests of justice, proceeded to hear the non-complying party on the merits of its opposition.

MCM argued that no substantial injustice resulted from his failure to file a Notice of Intention to Appear, as: (a) he had appeared in the proceedings from the outset and had clearly stated his intention to oppose the appointment of the Petitioner’s nominated Liquidator; (b) he had been served with the Petition and had responded by filing an Affidavit in Opposition, after which the parties exchanged Affidavits in Reply and Written Submissions; (c) the Petitioner was at all times aware of MCM’s intention to appear and was neither taken by surprise nor deprived of the opportunity to respond; and (d) on the hearing date, the Petitioner’s solicitor informed the Court that the Petitioner was willing to forgo pursuing the irregularity, thereby effectively waiving it.

MCM further contended that he was a party to the suit, notwithstanding that the Respondent Company was the S/N /tCXR5HskaZd9lL/jYlow nominal respondent, relying on the factual matrix in Hew Tai Hong v Kilo Asset Sdn Bhd (supra), where the other shareholders of the respondent company had filed affidavits opposing a winding-up petition brought under section 218(1)(f) and (i) of the Companies Act 1965, even though they were not named as respondents.

Having considered the rival submissions, I find that MCM did not, at any stage, file a Notice of Intention to Appear pursuant to rule 28 of the CWUR 1972. I further find that, unlike Enclosure 24, MCM’s formal application, supported by his Affidavit in Enclosure 25, for the removal of the Interim Liquidators and/or the appointment of CTG was withdrawn, and no fresh application was thereafter filed for the appointment of CTG as Liquidator.

Therefore, following the withdrawal of Enclosure 24, MCM’s objection to the Petitioner’s nominees and his proposal of CTG were advanced only in this Affidavit in Opposition, without any application properly constituted before this Court seeking a substantive order for CTG’s appointment by or on behalf of MCM or the Respondent.

Nevertheless, in the interests of justice, I heard the Respondent’s argument on the appointment of Liquidators on its merits. S/N /tCXR5HskaZd9lL/jYlow

(ii) The Wishes of the Majority Creditor (in Value)

The Petitioner contended that the Court has discretion to appoint a Liquidator, even where there are competing nominations, relying on Re Asia Media Sdn Bhd [2025] MLJU 3776, where the High Court held that, when faced with competing nominees, the Court must determine the appropriate appointment in accordance with established principles, including the creditors' wishes as to value.

The Petitioner further relied on Malaysian Assurance Alliance Bhd v Comsa Properties Sdn Bhd [2011] 7 CLJ 942, where Mohamed Apandi Ali JCA held that a substantial creditor has the right to choose the Liquidator, and that the rule of fair play demands that a Liquidator be independent and seen to be independent. This requires that the views of creditors be taken into consideration, and that where opposing views exist, the winding-up court ought to give due consideration to all the views.

This principle was also considered in Re Asia Media Sdn Bhd (supra), where the determining factor in choosing between competing nominees was held to be, in the ordinary course, the wishes of the majority creditors. The Petitioner also cited Dato' Sri Shamir Kumar Nandy v Crest Worldwide Resources Sdn Bhd [2020] 1 LNS 1134 and Southwind Development Sdn Bhd v Tanjung Tiara Sdn Bhd [2015] 1 LNS 523, the latter holding that, all other things being equal, the court is obliged to S/N /tCXR5HskaZd9lL/jYlow give regard to the wishes of the creditors, based on the value of the creditors’ debt.

On the facts, the Petitioner contended that he is the Respondent’s single largest creditor, with an outstanding debt of RM2,052,798.07, representing 95.68% of the Respondent’s total creditor value of RM2,145,388.91, as set out in the Interim Liquidators’ Second Report, exhibited in Enclosure 61.

MCM argued that the principle in Malaysian Assurance Alliance Bhd (supra) is inapplicable, as it was developed in the context of a petition analogous to section 218(1)(e) of the Companies Act 1965 (a creditor’s petition), whereas the present Petition was brought under sections 465(1)(f) and (h) of the CA 2016 (in pari materia with section 218(1)(f) and (i) of the Companies Act 1965), which “stands on a very different footing,” as stated in Hew Tai Hong v Kilo Asset Sdn Bhd (supra).

MCM further disputed the Petitioner’s standing as a substantial creditor, submitting that the figure of approximately RM2 million relied upon fails to account for company stock and assets valued at approximately RM6 million to RM7 million, which the Petitioner is alleged to have taken. Accordingly, upon a proper set-off, the Petitioner would emerge as a debtor owing approximately RM5 million to the Respondent. MCM further argued that Malaysian Assurance Alliance Bhd (supra) does S/N /tCXR5HskaZd9lL/jYlow not render a substantial creditor’s wishes determinative but requires the court to give due weight to all opposing views.

Having considered the submissions on this issue, I accept the Petitioner’s arguments, and I note that the figure of RM2,052,798.07, representing 95.68% of the Respondent’s total creditor value, is derived from the Interim Liquidators’ own Second Report, prepared by the Interim Liquidators in the discharge of their statutory functions. MCM’s assertion that this figure ought to be set off against an alleged RM6 million to RM7 million said to be owing by the Petitioner was not supported by any adjudicated finding and remains an allegation pleaded in MCM’s affidavits, which the Petitioner disputed.

Therefore, from the available evidence before this Court, I find that the Petitioner is the single largest creditor of the Respondent, and hence the Petitioner’s nominee is in accordance with the wishes of the majority of creditors.

(iii) Independence and Alleged Conflict of Interest of the Nominees

MCM contended that the appointment of the Petitioner’s nominees gives rise to a reasonable apprehension of bias, given the allegations of the Petitioner’s misappropriation of company assets, failure to account for company stock, and diversion of company business, thereby creating a clear conflict S/N /tCXR5HskaZd9lL/jYlow of interest, as a liquidator is duty-bound to investigate the conduct of all parties, including the party who nominated him.

MCM relied on Abdul Rahman bin Ismail v Pembangunan Qualicare Sdn Bhd [2018] 12 MLJ 338, where Lim Chong Fong J (as his lordship then was) applied the principle in Ooi Woon Chee & Anor v Dato’ See Teow Chuan & Ors [2012] 2 MLJ 713, citing McPherson’s Law of Company Liquidation, that a Liquidator must be independent and be seen to be independent, so that there cannot be an actual or apparent conflict. The judgment further cited Advance Housing Pty Ltd (in liq) v Newcastle Classic Developments Pty Ltd (1994) 14 ACSR 230 and Fielding v Seery [2004] BCC 315, for the proposition that a Liquidator should not be the nominee of a person against whom the company has hostile or conflicting claims, or whose conduct in relation to the affairs of the company is under investigation.

MCM further argued that the sequence of events, with the Petitioner effecting service of the Petition on 15 July 2025 after the ex parte Order appointing Interim Liquidators had been granted on 10 July 2025, suggested a preconceived agenda on the part of the Petitioner. MCM also referred to paragraph 5.1 of the Interim Liquidators’ Second Report, in which the Interim Liquidators stated that it was not possible for them to deal with the various allegations made by the directors and that such allegations ought to be ventilated and adjudicated in court. MCM submitted that this demonstrated a marked reluctance on S/N /tCXR5HskaZd9lL/jYlow the part of the Interim Liquidators to pursue investigations against the Petitioner.

The Petitioner, in response, contended that the grounds relied upon by MCM were unsubstantiated bare assertions and argued that MCM had failed to demonstrate any actual bias or conflict of interest on the part of the existing Interim Liquidators.

On the substantive question of independence, the Petitioner relied on the reasoning in Re Asia Media Sdn Bhd, which referred to the case of KNM Group Bhd & Anor v Hitachi Zosen Corp & Ors [2025] MLJU 3528, which followed the Federal Court decision in Ooi Woon Chee v See Teow Chuan & Ors (supra), that held that the guiding principle is that a Liquidator must be independent and be seen to be independent, so that there cannot be an actual or apparent conflict. On an apparent conflict, the correct approach, as set out in Advance Housing Pty Ltd (in liq) v Newcastle Classic Developments Pty Ltd (supra), is to consider whether there would be a reasonable apprehension by any creditor of lack of impartiality by reason of prior association with the company or those associated with it. The Petitioner further contended, applying Re Asia Media Sdn Bhd, which in turn cited Pongrass Group Operations Pty Ltd v Lowerpinems Pty Ltd (1994) 15 ACSR 341, that a previous relationship with the subject company or other interested parties will not, per se, disqualify a professional nominee from being appointed as liquidator, and that S/N /tCXR5HskaZd9lL/jYlow commercial reality dictates that the mere existence of such a relationship, without more, ought not to disqualify a nominee.

In the present case, no relationship of the kind that would give rise to a conflict, whether between the existing Interim Liquidators and either the Respondent or the Petitioner, was shown to exist. MCM’s allegation of breach of fiduciary duty against the Petitioner, without more, was insufficient to render the Interim Liquidators unsuitable for appointment as Liquidators.

In his grounds to appoint CTG as the Liquidator, MCM stated in its Affidavit in Opposition that the Petitioner’s conduct, including alleged breaches of fiduciary duties, diversion of the Respondent’s business to companies connected to himself and his spouse, and failure to account for substantial assets of the Respondent, reinforces MCM’s concern that the winding-up proceedings were brought in bad faith, to conceal or legitimise the Petitioner's own misconduct rather than for the genuine benefit of the company. On this basis, MCM averred that the appointment of a Liquidator at the Petitioner’s behest gives rise to a reasonable apprehension of bias, since a Liquidator so appointed may not act impartially or independently in investigating the Petitioner’s conduct, including alleged misappropriation of assets, stock discrepancies, and diversion of business. MCM averred that the Petitioner, himself under serious allegations of misconduct, should not be permitted to dominate the liquidation through a Liquidator of his own S/N /tCXR5HskaZd9lL/jYlow choosing, and that fairness requires both parties to appoint their respective Liquidators to ensure impartiality, transparency, and checks and balances, failing which the interests of creditors and contributories would not be protected.

Having considered the arguments on this issue, I find that the allegations of misappropriation, breach of fiduciary duty, and diversion of business made by MCM against the Petitioner remain contested and are denied by the Petitioner in his own affidavits. I further find that the allegations relied upon by MCM to assert bias and a conflict of interest concern the conduct of the Petitioner himself, and not any independent conduct, relationship, or connection on the part of the existing Interim Liquidators, Lim Sin Han and Leoh Hin Han, or their firm, Messrs Sin Han & Co. PLT. Hence, I find that the allegations raised by MCM have no relevance to the appointment of the Petitioner’s chosen Liquidators.

(iv) Whether Joint Liquidators Ought to be Appointed

As an alternative to appointing CTG as sole Liquidator, MCM argued that a Joint Liquidator ought to be appointed to provide a system of checks and balances in the administration of the winding-up. S/N /tCXR5HskaZd9lL/jYlow

MCM relied on Serendah Golf Resort Sdn Bhd v Mk Golf Resort Berhad [2011] MLJU 185, where the Court, mindful of concerns expressed by parties opposing the appointment of one nominee, Tarn, on the ground of a real likelihood of conflict of interest arising from his position as Liquidator of related companies within the same corporate group, appointed Sankar, one of three nominees of the opposing applicants, as Joint Liquidator alongside Tarn, so that Tarn’s conduct would in any event be counter-checked by Sankar.

MCM further relied on the Court of Appeal decision in Wong Weng Foo & Co v London Biscuits Bhd (In Liquidation) [2025] 3 CLJ 384, and contended that the purpose of appointing a co-liquidator was to ensure a fair and just progression of the liquidation and to strike a compromise between the company’s interest in completing the liquidation process and an objecting creditor’s interest in safeguarding its position.

The Petitioner argued that the facts of Serendah Golf Resort Sdn Bhd v Mk Golf Resort Berhad (supra) were distinguishable, as in that case there was evidence of a real likelihood of conflict of interest on the part of the opposed nominee, Tarn, arising from his position as Liquidator of related companies within the same corporate group, and Sankar, the nominee appointed as Joint Liquidator, already had prior experience in the affairs of the respondent in that case, having previously assisted the Official Receiver as Interim Provisional S/N /tCXR5HskaZd9lL/jYlow Liquidator. The Petitioner contended that, in the present case, there was no evidence that CTG had any prior involvement in the affairs of the Respondent, nor had MCM shown or proven that the existing Interim Liquidators had any conflict of interest. Therefore, the appointment of CTG would not be in the best interest of the Respondent and would only incur further unnecessary costs.

The Petitioner further argued that the appointment of antagonistic joint Liquidators, drawn from the nominees of opposing factions, is fraught with difficulty and often inimical to the efficient administration of the estate, relying on Shencourt Sdn Bhd (in Liquidation) (in receivership) v Shencourt Properties Sdn Bhd (in Liquidation) [2019] 12 MLJ 184, where Hamid Sultan JCA observed that, on the facts of that case, the appointment of two Liquidators resulted in no progress towards the liquidation stage, inconsistency between the Liquidators, the company’s assets being put at risk, personal conflict stalling the liquidation process, loss of confidence among creditors, and ultimately cross-applications by the Liquidators to remove each other.

The Petitioner argued that Wong Weng Foo & Co v London Biscuits Bhd (supra), relied upon by MCM, in fact illustrates precisely the scenario of two joint Liquidators in perpetual conflict, to the severe detriment of the winding-up process. The Petitioner further argued that the existing Interim Liquidators, having already undertaken work in the administration of the S/N /tCXR5HskaZd9lL/jYlow Respondent since 10 July 2025, are the appropriate choice for continued appointment as Liquidators, to preserve the work already done and to ensure a swift and orderly conclusion of the winding-up.

Having considered the rival submissions, I find that, unlike Serendah Golf Resort Sdn Bhd v Mk Golf Resort Berhad (supra), no evidence was placed before this Court to establish that CTG possessed any prior familiarity with the Respondent’s affairs of the kind that underpinned the appointment of Sankar as Joint Liquidator in that case. Nor was evidence adduced to substantiate an actual or apparent conflict of interest on the part of the existing Interim Liquidators themselves, as opposed to allegations concerning the conduct of the Petitioner.

For the reasons stated above, I allowed the Petition in Enclosure 1 and ordered as follows:

the Respondent, Vector Atlantic Sdn Bhd, be wound up pursuant to sections 465(1)(c), (f) and (h) of the Companies Act 2016.

Lim Sin Han and Leoh Hin Han of Messrs Sin Han & Co. PLT be appointed as Liquidators of the Respondent. S/N /tCXR5HskaZd9lL/jYlow

The Respondent to pay costs of RM15,000.00. Dated 25 July 2026 -sgd-JAMHIRAH ALI JUDGE HIGH COURT OF MALAYA COMMERCIAL 10 (INSOLVENCY 1) KUALA LUMPUR To the parties’ solicitors: For the Petitioner : Lew Wei Hung (Messrs Krish Maniam & Co.) For the Respondent : Kong Xin Er (Messrs Megan Lim Chambers) For the Interim Liquidator : Janice Tay Shu Hui (Messrs S Ravenesan) S/N /tCXR5HskaZd9lL/jYlow